HKSAR v. CHIA CHUN CHEONG

CACC 168/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 168 OF 2000

(ON APPEAL FROM DCCC 93 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. This applicant, who seeks leave to appeal against conviction, was charged with burglary and tried in the District Court before Judge Chua. The charge alleged that on 9 June 1999 he entered Flat A on 8/F of a building known as Marina Lodge, 368 Shaukeiwan Road, with intent to steal therein. He pleaded guilty, but was convicted and sentenced to a term of three years' imprisonment. His appeal against sentence has been abandoned.

The prosecution's case

2. At about 3.20 p.m. on 9 June 1999, a group of police officers saw a man called Wong walking back and forth outside Marina Lodge, and they were suspicious, and went to speak to him. He said that he was waiting for someone and he used his mobile telephone, purportedly to call the person for whom he was waiting. Then the police saw another man, whom they say was this applicant, coming out of Marina Lodge carrying a black bag. One of the officers, PC33288 (PW3), says that he went up to the man, produced his warrant card, but the man pushed him away, dropped the bag, and ran. The officer says that he followed in pursuit up Shaukeiwan Road, past Nam Hong Street, round a corner into Aldrich Street, and that outside or near 373 Shaukeiwan Road, he grabbed hold of the man, who 'elbowed' him, and the two of them fell, but the officer managed to hold the man to the ground. The prosecution evidence was that another officer, PC51599 (PW4), then arrived, and that the man then made some inculpatory comments, to which comments we must later return. In the black bag that had been dropped were found two crow bars, which were painted bright blue, and some cotton gloves.

3. The occupant of Flat A, 8/F, Marina Lodge had left home that day at about 2 p.m., returned at about 3.45 p.m., and saw that the iron gate and the wooden door to her flat had been prised open. No property was missing. The police lifted some wood fragments and paint samples from the broken door, and when these were compared with the samples of paint lifted from the crow bars, the samples agreed, upon expert analysis, in colour and in chemical composition.

The defence

4. The question in the case was whether the man who emerged from the building with the black bag was the applicant. His defence was that whilst there may very well have been this burglary, and whilst the police might very well have seen a man emerge and drop the bag and flee, the applicant was not that man. He worked at the material time for a welding company in Shaukeiwan and at about 3 p.m. he went for some tea, and when he was on his way back to work from a snack shop in Shaukeiwan Road, a person ran past him and into a building at no. 373 of that road; and that someone then pushed him from behind, and he fell to the ground. The police then announced themselves, asking why he had run, and though he told them that they must have made a mistake, they would have none of it and, shortly after, upon the arrival of a Sergeant, and in a building lobby nearby, they threatened him and beat him. In other words, his is a defence of police who have wrongly identified him as the man they chased and have sought to cover their error, or perhaps to bolster their mistaken belief, by fabricating inculpatory statements by him.

Speculation

5. The first ground of this application asserts that the trial judge erred in law in that she entered into speculation. The particulars allege two quite separate matters.

6. The first relates to evidence about a mobile phone, and it arises in this way. In the course of the voir dire, the applicant said that the officer (PW3) who had stopped him left the scene shortly afterwards saying that he had to go and retrieve a portable telephone. Whilst he was away he, the applicant, was beaten and threatened by other officers. Then, according to this evidence, the first officer (PW3) returned and said that he had failed to locate the telephone, and that later at the police station, the officer scolded the applicant saying that the applicant had caused him to lose his telephone, for which reason he was certainly not going to let him off. It was established in the course of cross-examination of that officer that he had indeed lost his telephone and the officer said in evidence that he had lost it one or two days before the incident. He denied the applicant's version of events.

7. In her reasons for verdict, the judge said:

"I also believe PW3 that he had not lost his mobile phone in the chase but a day or so before. I expect the defendant overheard conversation about this, and used the information to lend verissimilitude to his testimony."

8. The complaint is that the suggestion that the applicant heard the officer mention the matter in passing and that he used the information to lend verisimilitude to his testimony, is a speculative suggestion.

9. The point is less than compelling. The judge was saying that she believed the officer that he had not lost his telephone that day. She was entitled to that finding and once she found that to be so, she was also perfectly entitled to suggest that the applicant must have picked up some information about the loss of the telephone at some occasion and in circumstances other than those suggested by him. The applicant had been taken to the police station and there interviewed and kept in a room where, so the evidence established, there was much coming and going of other officers. The judge's comment does not offend common sense, and what is important is her finding that the officer was telling the truth.

10. The second complaint under the rubric "speculation" relates to the judge's treatment of the evidence about the applicant's comments upon his apprehension. The evidence was that the applicant said that he ran because he was caught for a burglary and that his partner was also caught; that the applicant was then cautioned and that he said he had only started work for a few days; that the burglary had yielded no property; and that he wanted the police to give him a chance. No notes were taken at the time of these comments. They were reduced to writing later at the police station, and the applicant was asked to sign the "post recording", which he did, he adding a rider, however, that he had not said what that statement attributed to him.

11. The evidence of the relevant officer, PW4, in the course of the voir dire was that whilst the note later made was not a verbatim record, the essence and the meaning was accurately reflected.

12. In the course of her reasons for verdict, the judge said this :

"I am satisfied he made the oral admissions which PW4 post recorded."

13. The complaint here is that the witness had said that he could not vouch that it was a word for word record; so that it was necessary for the judge to examine this issue before she could place any reliance upon what was said.

14. It is obvious to us that the judge accepted what the officer had said, namely, that he accurately recorded what was said but could not vouch for the accuracy of each word. In what was a short trial, this issue was scrutinised in the cross-examination of the officer, the judge herself asked a question about it, and the other officer, PW3, supported, save in one particular regard to which we shall later refer, the evidence as to what was said upon the applicant's apprehension. Once the judge accepted the evidence of the officer PW4, as she clearly did, it follows that she accepted that the record he made was accurate, even though not necessarily a verbatim record. What is more, the passage about which complaint is made is taken in isolation. Only two pages earlier in the reasons for verdict, the judge specifically addressed this question of the accuracy of the record and she distinguished the effect of the officer's evidence from evidence in a cited case in which an officer had substituted his own words for quite different words used by a defendant. She addressed the point specifically, also dealing with other points argued as relevant to the reliability of the evidence of the oral admissions.

15. We are untroubled by the way in which the judge has dealt with this point. She has not engaged in speculation. She was satisfied that the reported remarks had been made even if an immaterial word here or there may have been different. The first ground of appeal has nothing in it.

16. It is also said that there is a discrepancy as between the officers as to what was said upon arrest, and that the judge for no good reason relied on one version and not the other. One officer says that upon arrest the applicant said: "I could not work in these few days. Give me a chance," whereas the other officer attributed to the applicant the words: "I have started working for several days only. I have not been successful. I did not get anything in this last case. Give me a chance." If it were suggested that these words used, on whichever version, constituted the whole of the statements made by the applicant an arrest, then the disparity might well have caused us concern. But that is far from the case. There was much more, common to both accounts, which constituted a clear admission to the burglary.

Identification

17. The second ground of appeal is that the judge misdirected herself in connection with, or failed properly to consider, the question of identification. The passage complained of runs as follows:

"As identity was in issue I kept in mind the warnings in Turnbull's case on the dangers of mistaken identity. However, this was really a situation of which witnesses I believed. I did not find the defendant a credible witness. There were noticeable pauses to questions he had not anticipated and to which an answer was made up on the spot. The officers on the other hand convinced me they were telling the truth.

The defendant did not challenge PW2's description of what the second man who appeared, wore."

18. First in this regard Mr Grounds, for the applicant, says that the judge has confused credibility with accuracy; in other words, that the passage suggests an approach which says that if a witness is credible he must necessarily be accurate. It seems to us that in context, what the judge was saying was that she believed the prosecution witnesses on the central issue which she had to address on the question of identity, and that central issue is encapsulated in the sentence which next follows in the reasons for verdict, namely: "I accept the evidence of PW3 that he never lost sight of the defendant, as he chased him from Marina Lodge till he caught him in Aldrich Street."

19. But Mr Grounds says that the judge's acceptance of credibility of PW4 leads the prosecution into problems. The point he made is this, that since PW4 was chasing close behind PW3 and lost sight of the applicant, so too must PW3 have lost sight of him. This does not follow, for it is common ground that PW3 was ahead of PW4, and turned a corner with the applicant. Furthermore, such suggested disparities within the evidence of PW4 to which our attention has been drawn are not of a kind which in our view rendered his account inherently improbable.

20. The judge had the issue of mistaken identity well in mind. That that is so is clear not only from her reference to Turnbull, but is also made clear from a study of the transcript of the evidence. The judge herself asked the question at an early stage of examination in chief of PW3 whether identity was in issue, and there then followed very extensive examination of the witness as to the chase he says took place; the distance he was from the man he chased; whether the path he travelled was crowded; the speed at which they ran; the lighting conditions; the clothing worn; and, in particular, whether he, the officer, ever lost sight of the man whom he was chasing. Indeed, that last question was a question which the court itself put, and which was revisited by counsel on several occasions. It was quite unnecessary for the judge to regurgitate each point in the reasons for verdict. It is perfectly clear from a reading of the evidence, and from those reasons, that the judge was well alive to the issue and to the dangers of identification evidence but that, having found that the officer never lost sight of the man he was chasing, she was sure that there was no error. We are not persuaded that there is anything in this ground either.

The oral admissions

21. It is said in this ground that the judge failed to make any determination about the admissibility of the oral admissions allegedly made by the applicant. Those oral admissions are those to which we have made reference, namely, the admissions allegedly made by the applicant when he was first brought down and questioned by the officer PW4 in Shaukeiwan Road. It is clear that the applicant had at all times at trial denied that he had made any of the inculpatory statements attributed to him by the police officers, on the contrary he said that his comments such as they were were exculpatory. His case was that after he was stopped by PW3, other officers arrived, PW3 left to fetch his mobile telephone, and then he, the applicant, having been taken to a building nearby, was threatened and beaten by Sergeant 13, and that he was then brought back to the police station, after which there were further threats, and pressure upon him to sign the statement which was there composed.

22. What happened at trial was that objection was taken to the admissibility of the written record. There then followed a lengthy discussion between counsel and judge in which it was established that the applicant denied uttering the inculpatory comments attributed to him at the scene of his arrest. Defence counsel proffered written particulars of the objections to the written record. No objection was there taken to the admissibility of anything allegedly said at the place of arrest. Even so, the particulars of objection to the admissibility of the record of interview expressly alleged beatings after his arrest and whilst still in Shaukeiwan Road, as well as threats later at the police station. In the course of the discussion with counsel, the judge said that there were two stages:

"First stage will be whether what he will say about what he said to the defendant at the scene and the answers given as he recollected, that's the first stage, that will be disputed as to whether it was or was not said. The second stage is the post record, whether that post record of that conversation is admissible.

... because the assault was alleged to have taken place after this alleged conversation."

23. Counsel for the applicant took no issue with the judge's comments and indeed said he followed them. The judge then went on:

"So while the post record is being challenged, what was said and the contents of the conversation is not a matter of admissibility, it's a question of whether it did take place or did not take place;"

And then a little later the judge made reference to the case of Thongjai and Anor v The Queen [1997] 2 HKC 109, and remarked upon the fact that in the present case there did not appear to be any suggestion of an assault before the applicant could say anything to the police.

24. On the following day of the trial there was a further exchange, when counsel for the applicant was about to commence cross-examination of the officer who made the post record. That exchange goes as follows:

"MR FUNG: Good morning, your Honour, it's about time for me to start my cross-examination. I have looked it up from the authorities yesterday and I would have felt that procedure-wise for an oral admission we should held a voir dire officially.

COURT: We'll do it altogether. I will give my ruling altogether.

MR FUNG: Yes, sure.

....

COURT: But the oral admission, certainly based on what I read of your grounds, you appreciate whether it was a voluntary basis or it was the issue seems to be not that but whether it happened or it didn't happen?

MR FUNG: Yes, that's right, just procedure-wise, because I have spent some time in looking from this point yesterday.

COURT: Well, the main case is Tung Chai.

MR FUNG: That's right, the Tung Chai authority in which Mr Halley was in."

25. We have assumed, as Mr Grounds also did, that the reference in the transcript to 'Tung Chai' is in fact a reference to Thongjai.

26. Quite what counsel meant when he said it was a matter of procedure is difficult to follow. It seems clear enough, though, that the judge was still saying that there was no issue of voluntariness in relation to the alleged oral admissions. Thongjai is the case in which the Privy Council held that an accused person was entitled to challenge an oral admission both on the basis that he made none, and also on the basis that he was ill-treated by the police before or at the time he allegedly made the admission.

27. This authority and the judge's approach form the basis of Mr Grounds' complaint. He argues that it is clear enough from the applicant's evidence that he was beaten by the police at or about the time of his apprehension, that is, at about the time he is alleged to have made the oral admission.

28. In her reasons for verdict, the judge said that:

"The prosecution having proved the defendant was not assaulted, threatened or induced to sign the post-record, I ruled it in evidence as Exhibit P5."

29. Mr Grounds argues that this is not good enough; that the judge should have dealt, but did not, with the admissibility of the oral admissions allegedly made, she having found that he did make them, and the applicant having alleged that he had been assaulted shortly after his arrest.

30. Despite some suggestions which might be gleaned from the reasons for verdict that the judge in fact ruled on the voluntariness of the oral admissions, we have concluded that she took the view that the question of voluntariness in relation to the oral admissions did not arise, because on no view of the evidence, or of the written objections, was it suggested that a beating or other impropriety took place at or before the time of those admissions. The police evidence was that the oral admissions were made immediately upon the applicant's apprehension by the police, that is, whilst they were in Aldrich Street. PW4 spoke to the defendant immediately he came upon him and PW3, and he spoke to him because PW3 was out of breath; and that at that stage, only PW3 was present. Later, because there were many onlookers, he took the applicant to the lobby in question and only then did the Sergeant, the alleged assailant, arrive. The written grounds of objections expressly contend that the applicant was brought from Aldrich Street to the lift lobby of a building in Shaukeiwan, and only then threatened and beaten, and that too was the applicant's own evidence in the course of the voir dire. The judge took the view therefore that because of the cases, common to both prosecution and defence, there arose no room for an argument that the applicant was ever assaulted by the Sergeant in circumstances which might have induced the oral admissions allegedly made.

31. It is not in the event necessary to decide whether this was too narrow a view in the light of the decision in Thongjai. That is because the judge made a specific finding that the prosecution had actually proved that the applicant was not assaulted or threatened or induced to sign the post record and, in the circumstances of this case, we are satisfied that this must include the allegation of assault in the lobby; in other words, that the judge expressly addressed those allegations of assault at or shortly after arrest and rejected them. It is suggested that, in the passage in the reasons for verdict which we have just cited, the judge was there referring only to the events of the police station. That cannot be so, because there were no allegations of assault at the police station and, in any event, it is, in our judgment, inconceivable that in deciding whether the witness statement was made voluntarily the judge ignored the evidence of assaults in or near Shaukeiwan Road, evidence that was extensive and the subject of much cross-examination. An examination of the judge's handwritten notes of her ruling on the question of admissibility shows that she refers accurately to the allegations of threats and assaults and finds in terms that "there is no substance to the allegations". To what allegations is she referring? It is argued that she is perhaps referring only to the allegations of misconduct at the police station. That cannot be so, because she says in those notes that: "the procedures of the post-record was objected to as inadmissible because the signature of the defendant was appended after he had been assaulted at the scene, subsequent to the conversation by PW5 Sergeant 31 who had arrived afterwards."

32. In the light of the express finding, negating any misbehaviour at the scene of arrest, there could be no room at all for a finding that the oral admissions, if made, may have been made involuntarily. That being so, such basis as there might otherwise have been in this ground, falls away.

Discretion

33. We turn to the fourth ground. This says that the judge wrongly failed to exercise her discretion when deciding to admit the oral and written statements as evidence. Here, Mr Grounds advances a number of matters in support of the complaint. With one of them, namely, the suggested disparity between the evidence of the officers as to what was said upon arrest, we have already dealt.

34. Mr Grounds then turns our attention to the following passage in the reasons for verdict:

"[(In PW4's evidence)], he had claimed he had cautioned the Appellant for burglary of a specific address. This was not so if one looked at the post record, otherwise I should exclude this evidence as being unfairly obtained or use my residual discretion to rule it inadmissible. There being no reason to I declined to do so."

35. Mr Grounds says that it is a difficult passage to comprehend, and he argues that it is clear enough from that passage that the judge would have excluded the oral admission had she believed the witness when he said that he cautioned the applicant in respect of a specific address. The argument is not easy to follow. Perhaps the suggestion is that merely because of the discrepancy or the fact that the officer recorded without complete accuracy in the written statement that which he had put at the time of arrest, the statements (oral and written) or either of them should be excluded. That does not on its own appear to us to justify the exercise of discretion in the applicant's favour. But all that is by the by, because none of this, in true context, is what the judge was saying. What she was doing was reporting a submission. That should be clear enough if one looks at the passage in context. The paragraph from which the passage is taken actually begins with the words: "It was Mr Fung's submission ...." So in fact the judge was merely repeating a submission which, not too surprisingly, she found unattractive.

36. Then it is said that the judge failed to address the question whether the applicant was cautioned early enough; the suggestion being that he was asked a number of questions before he was arrested and cautioned. The fact is that it was never submitted in argument that there was a breach of the relevant rules and that the judge should exercise her discretion for this reason. It is a matter of fine judgment whether on the facts of this case a caution should have been administered earlier than it was, and we have no doubt but that even had the point been raised, it was bound to fail. The judge quite clearly was aware of the discretion she had and asked herself whether there was anything in the evidence which warranted exclusion. It was not for her in the absence of any submissions, or of anything glaringly obvious, then to pick through the rules of her own motion to see whether there may or may not have been a breach of this item or that.

37. It is further contended that the judge failed to resolve the suggested inconsistency in the evidence of PW4 and the record he made whether in cautioning the applicant he mentioned a specific address or not. Why it is thought that the judge would exclude an admission following a caution which mentioned an address, but not when the caution does not mention a specific address defeats us.

Shifting Burden

38. Finally, it is said that the judge placed a burden on the applicant to prove his innocence by establishing that his admission was not voluntary and that he was not guilty of the burglary. Given that the judge said in terms that it was the prosecution that had proved the voluntariness of the post-record, and that the prosecution had proved the elements of the charge, the particulars of this complaint must be stated.

39. The complaint relates to one sentence in the reasons for verdict which reads as follows:

"The defendant did not challenge PW2's description of what the second man who appeared wore."

40. PW2 had given evidence that the man who emerged from Marina Lodge wore a blue shirt, a tie with a floral pattern, and black trousers. It is common ground that the applicant was wearing a blue shirt, a tie with a floral pattern, and black trousers. The other officers gave the same description of the man who emerged from the building. Counsel for the applicant says to us that there would have been scant point in a defence challenge of the description by PW2, because PW2 was a member of the same team as PW3 and PW4, and that it is highly unlikely that he would have given a description different from that given by those two officers. He says that by her comment the judge has shifted the burden onto the applicant, and that the identification by PW2 could not have any significance or weight unless the prosecution had proved that there had been no prior communication between the officers.

41. We see nothing of any substance in the contention advanced. The judge accepted PW2's description. She was entitled to do so. PW2 was there at the building when the man emerged; the man who was then chased. The judge was saying no more, in the sentence drawn to our attention, than that there was nothing to controvert that evidence. She could hardly have been saying that if the applicant did not contradict it, she was bound to accept it. She could not have been saying that, because she was well aware that on the applicant's case he could not have challenged the description, for the simple reason that he says that he did not see who came out of Marina Lodge, for he was never there. She simply accepted the unchallenged evidence of PW2, and it leant support to the evidence of PW3 and to the prosecution case that PW3 caught the same man.

Conclusion

42. In these circumstances, despite the very extensive and particular scrutiny to which these judge's findings have most meticulously been subjected, there is no ground of merit in this application and it is dismissed.